Legal Revolution or Governmental Coup?

By Mr. Lior Akerman​​ | February, 2023

Is the “reform” in the legal system, as presented by incoming Minister of Justice Yariv Levin, a genuine professional reform? Does it truly constitute a revolution in the field or is it a form of governmental coup executed by the government itself? The governmental justification for implementing this alleged reform is to strengthen democracy and governance, but these may not necessarily be the direct outcomes of the steps planned by the new Israeli government.

In his speech, Levin announced the “first phase” of the Netanyahu Administration’s “governance reform”, the purpose of which he claimed was “to strengthen democracy, reinstate governance, restore faith in the justice system, and recreate the balance between the three branches of government”. Under regular circumstances and conditions such as a balanced, normative coalition, one might have believed that these principles indeed form the basis for this reform; however, in the current Israeli government’s state of affairs, the very opposite seems to be the true aim of this campaign.

For a start, one must emphasize that the Israeli justice system is indeed in need of a reform; however, not necessarily the one of which Levin spoke. The Office of the State Attorney should be thoroughly examined with regard to its functioning as well as that of its position holders over the years, including the inefficiency and length of time required for cases to be attended, while many inquiries are closed and felons released with no legal proceedings at all. The justice system certainly requires a change in the context of judges’ level of professionality, efficiency, and work pace, as well as the loss of deterrence caused by lenient and unreasonable sentences and rulings. The balance between the Supreme Court’s power and that of the government should indeed be restruck; however, as explained below, the method by which this purpose is to be achieved should differ from the one suggested by the Minister of Justice.

The reform proposes several key steps:

The first is changing the composition of the judicial selection committee so as to exclude the bar association representatives and add political position holders in their stead. This step will significantly impact the level of the selected judges’ professionality, since they will no longer be nominated by their professional functioning, but by their opinions, and the level of congruence between them and the political administration appointing them. Judges and judicial candidates would, therefore, find themselves wooing politicians feverishly, promising to serve their interests, instead of being the protectors of Israeli democracy. Such a step would completely do away with the existing separation between the judiciary and executive branches, in effect subordinating the justice system to the government and Knesset. There will no longer be three separate branches of government in Israeli democracy, but a single authority that determines and manages everything with no oversight and control by the other two. If readers are reminded of a dictatorship, it is no coincidence.

The second is legislating the override clause by a simple majority of 61 MKs. This law means that the government would be able to abolish and circumvent any Supreme Court ruling by a small, negligent majority, while utterly ignoring aspects of human rights, individual freedoms, and other democratic principles. This change would also put a great distance between democracy and the Israeli government, turning the latter into a huge power that conducts itself with no checks and balances.

The third is limiting the Supreme Court’s authority to disqualify laws, and preventing its ability to intervene in the legislation of basic laws. Here the issue is doubly complex. The reason why the Supreme Court’s level of involvement in legislation, including that of basic laws, has increased is that in Israel, unlike any other properly-managed country, there is no constitution. And in its absence, for coalitionary and sectorial reasons, the Knesset has passed several basic laws which were never as forceful as a constitution, and may be changed and redefined with relative ease, allowing any government to tailor them to its own particular whims. For this reason, and since Israeli governments have traditionally avoided addressing complicated social conflicts, the court was forced to intervene and make its position known. It is therefore clear that the court’s power and involvement in government proceedings have indeed grown over the years. However, the reason for that was, primarily, the weak nature of the executive branch, government’s precariousness, unsteady coalitions, and lack of governance that sprang from political instability. The correct way of righting this wrong, therefore, is not to weaken the court but to strengthen the government while bolstering its ability to govern. And the only way to do that is to change the government and electoral system in Israel.

The fourth is canceling reasonability as part of the court’s considerations. This demand may seem logical to an untrained ear; however, upon closer examination of the judicial state of affairs in most western countries, it appears that, not only does reasonability exist in all of them, but it constitutes a fundamental principle of the justice system. It is found in the United States, Canada, and the UK, as well as in most enlightened countries maintaining a true democracy. Reasonability is a fundamental principle in the American justice system, and serves in all areas of law: commercial, constitutional, administrative and corporate. According to all legal experts worldwide, reasonability is directly linked to principles such as justice, transparency, and the employment of proper discretion in government decision-making processes. Yet a government that knows in advance that its decisions will be expressly unreasonable would certainly strive to cancel reasonability, thereby gaining more power and ability to govern and control with no boundary or limitation. If we find another indication here of the loss of democracy and beginning of dictatorship, we probably would not be wrong.

The fifth and final step is turning all legal advisors in government ministries into positions of trust appointed by the heads and ministers in each ministry instead of being filled by professional, independent consultants. One must admit that, over the years, the weight of legal advisors in decision-making processes has indeed increased, and they have indeed become a yoke around the neck of both the government and functioning systems such as the IDF, Israel Security Agency (ISA) and Israel Police. Undoubtedly, balance must be restruck in this area. But how best to do so? The means suggested by the Minister of Justice will, of course, achieve the very opposite outcome; however, it is the one he desires, since it will allow the current government’s totalitarian governability to know no legal bounds. Legal advisors who are committed to no one but the ministers to whom they report will employ no professional discretion or critical thinking and, instead, focus on finding support and justification for every action taken by the government. Such a step would indeed bolster the government, but it would also impede any legal ability to lawfully defend the government’s decisions to organizations, countries and bodies outside Israeli borders. It is yet another process contributing to the government’s ability to govern under no legal and lawful limitations. The right way to do this would be to keep appointing professional legal advisors who are committed to their professional integrity while taking them down a notch so that they are once again consultants as opposed to decisionmakers.

An analysis of the actions that the Israeli government intends to implement in the area of law reveals a clear picture that certainly is not the one the minister speaks of, but is probably the one he means. They will not strengthen Israeli democracy but weaken it, falsifying it altogether. These steps aim to create absolute, uninterrupted governability for the government and the man heading it that answers to no judicial oversight, similarly to other dictatorial regimes elsewhere in the world. The likes of these actions have been taken in recent years in Hungary, Poland, Russia, Turkey, and, regretfully, and however difficult it may be to admit, are the very same steps taken in Germany by the National Socialist Party as part of the Enabling Act of 1933, which totally weakened the justice system, removed parliament’s ability to abolish government-legislated laws, and gave the government and the man who headed it the complete, unconstrained legislation abilities that allowed them to implement their racist dictatorial vision, actively excluding many sectors of the population, in the same vein as the statements made by some members of the current Israeli coalition. Internal security is no longer enough, the police force must be linked to military and intelligence forces to form the national security force, much like the process leading to the establishment of the National Security Ministry in the current government.

History is not wrong, it simply happens. All we can do is learn our lessons from the past and try to right the wrongs in future. The warnings made by various parties in Israeli society with regard to the risk of an imminent civil war are no longer mere slogans and intimidations. It is a reality forming before our very eyes.

Authored by Lior Akerma, Brig. Gen. (Ret.) ISA, a senior researcher at the Institute for Policy and Strategy (IPS), Reichman University.

If you wish to receive the weekly brief regularly, please follow the link to register.

Back to the newsletter >>